In re Truckvault, Inc., 97060107, No. 13 (T.T.A.B. Jan. 2, 2024)

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In re Truckvault, Inc., 97060107, No. 13 (T.T.A.B. Jan. 2, 2024)

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`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`General Email: TTABInfo@uspto.gov
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`January 2, 2024
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`In re Truckvault, Inc.
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`Ex Parte Appeal No. 97060107
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`By the Trademark Trial and Appeal Board:
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`The Trademark Examining Attorney has refused registration of application Serial
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`No. 97060107 for the mark TRUCKVAULT under § 2(e)(1), 15 U.S.C. § 1052(e)(1), as
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`merely descriptive of the identified goods. Appellant filed a notice of appeal on May
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`4, 2023, and the Board instituted this appeal on the same day. After Appellant filed
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`an appeal brief, the Examining Attorney requested remand to make new evidence of
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`record, which the Board granted. On August 30, 2023, the Examining Attorney issued
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`a subsequent final Office action maintaining the refusal under § 2(e)(1), and the
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`Board resumed the appeal. Appellant filed a supplemental brief on October 30, 2023,
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`and the brief was forwarded to the Examining Attorney for a brief.
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`It has come to the Board’s attention that in its supplemental brief, Appellant
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`stated that, although it wished to pursue its arguments on appeal against the refusal,
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`in the event that it does not prevail on those arguments, App ellant offers an
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`alternative amendment to assert a claim of acquired distinctiveness under § 2(f) of
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`the Trademark Act.
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`Ex Parte Appeal - Serial No. 97060107
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`We therefore suspend action on the appeal, and remand the application to the
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`Examining Attorney for the limited purpose of addressing the alternative
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`amendment. If the amendment is unacceptable, the Examining Attorney must follow
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`the procedure in TMEP § 816.04, which requires a new non-final action. If a final
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`refusal ultimately issues, the Examining Attorney should omit the response clause
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`and return the file to the Board. At that point, the Board will resume the appeal and
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`set time periods for supplemental briefing.
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`On the other hand, if the amendment is acceptable, because App ellant’s brief
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`already expresses its intention to go forward w ith the appeal on the underlying
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`refusal regardless, the Examining Attorney need only issue a written action to
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`continue the underlying refusal, and note that the alternative amendment is deemed
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`acceptable and will not be an issue on appeal. Such action should omit the response
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`clause. The file should then be returned to the Board at which time jurisdiction will
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`be restored to the Examining Attorney for a brief.
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`Because of the advanced stage of this appeal, the Examining Attorney must take
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`action within 30 days of the date of this order.
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`2
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